But that’s not the law, or at least it isn’t the law when it comes to federal habeas corpus. Under Schlup v. Delo and other cases, innocence does matter. Not in and of itself, mind you. But you can clear a procedural hurdle or two with it.

And there’s the rub, or maybe – just maybe – a real opportunity to help the law conform to reality more than it currently does, which in too many cases it doesn’t. We can’t have that.

See, there’s an inside joke that’s relevant here: “There they go, framing the guilty again.” We don’t like police and prosecutors manufacturing evidence so they can convict someone, but we dislike it less than letting the guilty go free.

Which brings us back to the main point: what if that’s not an issue, because the accused is innocent? That is, this time they weren’t framing the guilty, like in the joke, but they went further and framed the innocent? Does that matter?

To sane people of course it does. But the system has an internal logical imperative that is impervious to sanity: if the accused is innocent, he will be acquitted at trial. This is axiomatic, like a tautology.

Yet federal habeas corpus stands outside the system to correct its extreme malfunctions and there’s this innocence thing, and everyone is really uncomfortable with it but, you know, there it is.

So my colleague is grilling me: if the trial isn’t the remedy, what is? And of course I say that we give civil defendants “summary judgment” because for them a trial is just too, too much risk and work, so can we never give a criminal defendant summary judgment or its equivalent, even when they are being maliciously prosecuted by police and prosecutors who are, for that reason, the real criminals in the whole thing?

But then back to the world we live in, not the one we would have. Sure, you could have such a remedy in theory. But in practice it wouldn’t exist, just like suppression of evidence, just like the government turning over Brady material, just like dismissals in furtherance of justice, just like relief on appeal. Just like pretty much every other damn thing that is promised to lowly criminal defendants and their lawyers but never delivered.

In other words, it won’t happen. You can have your innocent defendant, you can have your evidence proving it, you can catch the police and prosecutors red-handed having made the whole thing up and coercing/bribing all the witnesses and so distorting the hallowed process that it’s become a farce. And what will the process do? We already know, if we’ve been paying attention. It will grind mindlessly on to a criminal conviction of an innocent person, because it’s easier to do that than confront what has really occurred. And because determining innocence is the job of juries, whose livelihoods are not so vulnerable when they declare the police and prosecutors wrong, as a judge’s livelihood is.

And so that is why federal habeas corpus exists, or at any rate it is one very, very good reason it exists. But then like anything else, if it is going to remain meaningful it must be reserved for the exceptional case. And of course it is fraught with systemic concerns about federalism and one system (federal) interfering with another (state) and blah blah.

Years ago these guys thought they were being wrongfully prosecuted because the law being used to prosecute them was plainly unconstitutional, so they went over to federal court not on habeas corpus but on a 42 U.S.C. 1983 action and sought to enjoin the prosecution – that is, stop it with an order, an injunction, from the federal court.

Nothing doing, said the Supremes, and so “Younger abstention” was born. Absent some ill defined something or other, we federal courts are going to abstain until we see just what exactly the state system is going to do first.

But look here:

The Court confines itself to deciding the policy considerations that, in our federal system, must prevail when federal courts are asked to interfere with pending state prosecutions. Within this area, we hold that a federal court must not, save in exceptional and extremely limited circumstances, intervene by way of either injunction or declaration in an existing state criminal prosecution. [Footnote 2/3] Such circumstances exist only when there is a threat of irreparable injury “both great and immediate.” A threat of this nature might be shown if the state criminal statute in question were patently and flagrantly unconstitutional on its face, ante at 401 U. S. 53-54; cf. Evers v. Dwyer,358 U. S. 202, or if there has been bad faith and harassment — official lawlessness — in a statute’s enforcement, ante at 401 U. S. 47-49. In such circumstances, the reasons of policy for deferring to state adjudication are outweighed by the injury flowing from the very bringing of the state proceedings, by the perversion of the very process that is supposed to provide vindication, and by the need for speedy and effective action to protect federal rights. Cf. Georgia v. Rachel,384 U. S. 780.

Emphasis supplied.

The jurisprudential landscape has certainly changed since Younger was decided in 1971. It is now hard to imagine any federal court interfering with an ongoing state criminal prosecution no matter how terrible it is, no matter how innocent the defendant. Somebody could argue that someday, of course.

But in the meantime there is this federal habeas thing.

Now the state court criminal proceedings are not in progress, as in Younger, but have concluded. Federal courts still don’t like to second guess, but that is the very essence of federal habeas corpus, so they can’t very well say they won’t do anything ever on that basis, writing federal habeas corpus out of the law entirely.

And here’s a neat thing: in federal habeas corpus innocence matters. In federal habeas corpus a federal court can distinguish between the accused who is framed and is demonstrably innocent and the accused who is framed but is not demonstrably innocent. It can clear away the procedural hurdles for the former – even the fairly fundamental requirement to exhaust state remedies – but not for the latter.

So here is how that would work. The state system can mindlessly grind on to its conviction of an innocent person who has been maliciously and deliberately framed by police and prosecutors, because that’s what state systems will too often do, being largely captured by and in thrall to police and prosecutors.

But their victim will be entitled to immediate relief in federal court on habeas corpus

This may be the best the system can do. Should an innocent person who has been framed by police and prosecutors be entitled to a writ of prohibition in the state courts? Well, yes, but according to state courts such “extraordinary” writs are issued only as a matter of discretion. No one is ever entitled to them. So if you don’t get that, your client is innocent and indeed no one is even disputing that because it is indisputable, what do you do then? Go to trial? That simply rewards the police and prosecutors for the criminal conduct they have already committed and indeed invites more of the same.

At your client’s expense and risk.

You can go over to federal court on a 42 U.S.C. 1983 and cite that language from Younger, seeking an injunction. After the state courts have denied you a writ of prohibition, of course. Lots of luck. And to boot, even from my own point of view I can see the problems that might ensue from making that remedy available, and although I find those problems less serious than the problems of not having the remedy, I am not going to say there aren’t good arguments from the other side.

This is a question of balance.

So it seems to me that the right balance to strike is that an actually innocent person who has been convicted in a state court by the malicious and deliberate use of perjury and fabricated evidence should have immediate resort to federal habeas corpus and none of the many procedural bars to relief should apply. The constitutional principle is that it is a violation of due process for the state to “obtain a conviction” – whether at trial or by plea – with evidence known to be perjured and fabricated, although this principle is lamentably confused at present (see footnote 2 to link). And the habeas corpus principle is that the conviction of an innocent person is a “fundamental miscarriage of justice” that must be remedied. By convicting a demonstrably innocent person in the first place, the state courts would have already shown that they are not up to the task of remedying that problem. We abstain from interfering while the process goes on because of Younger. Why should state courts be indulged further?

For me these are not abstract questions. But it’s important to get the law right when it’s as completely messed up as it is right now. A case that presents the relevant issues is an enormously important and rare opportunity to do so.